What Is Our DATE OF SEPARATION? Maybe Whatever a Trial Court Says It is!

Marriage of Davis (2013) 220 Cal.App.4th 1109 - What Is Our Date of Separation?

Husband and Wife married in June, 1993. They have two children, born in 1995 and 1999. According to the appellate decision, they stopped being intimate in 1999, shortly after the second child was conceived and they didn't go out on "dates" either. The parties made different claims as to when they stopped sharing a bedroom - Husband said this occurred in 2001, and Wife testified this occurred in 2004.

They shared a joint bank account from which they paid joint expenses. In 2001, Husband was earning approximately $180,000 per year and Wife was earning $115,000. In 2003 Wife opened a separate bank account to manage her business funds and allocate money for personal expenses. In January, 2006, Husband accepted a job at Clorox that paid an annual salary of $240,000 ($20,000 per month). 9 months later he left that position. During the time he worked at Clorox, he deposited his earnings into a separate account he'd opened, while contributing $3,200 monthly to the joint account for household expenses.

By June, 2006, Wife had been without a job for 6 months and was working as an independent contractor with average monthly earnings of $3,000 to $4,000. Wife testified at the bifurcated trial that she was "frustrated" by H's decision to retain the balance of Clorox earnings for himself, that she did not know he'd opened a separate account, and that she was cut off from accessing a Charles Schwab account that they'd opened. On June 1, 2006, she announced her intent that the marriage was ended. She also provided him a spreadsheet itemizing the household expenses because she wanted the parties to equally contribute to running the home and to the children's expenses, and that each would pay their own.

In July, 2006 (shortly before H quit Clorox) the worm turned. Wife found salaried employment that paid her $138,000 yearly, or $11,500 per month. She made arrangements to pay her share of the household expenses into the joint account, with the balance now going to her own new personal account. She testified that "as far as I was concerned, the marriage was done." However, she did not move out; she did not remove her belongings; and she continued to receive mail and telephone calls at the home, and cooked meals for the family.

That was the status quo on December 30, 2008, when W filed a dissolution petition alleging the date of separation to be June 1, 2006. Husband filed his Response on February 4, 2009, alleging a DOS of January 2, 2009. Wife remained in the home until July, 2011.

Thereafter, in January, 2012, a four day trial occurred at to the parties' DOS following an order for bifurcation of that issue. Still evidently ambivalent about his contentions concerning the date of separation, however, on March 8, 2012 H amended his Response to allege a new date - July 1, 2011, the day that W moved out of the family residence. On May 2, 2012, the trial court announced its decision that the DOS was June 1, 2006, accepting W's position in full. H appealed.

Justice Dondero, writing for the Court of Appeal for the First Appellate District, Division One (Alameda County), affirmed the trial court decision. While the decision seems at first blush surprising in light of prior published case law on the subject, it really isn't. H hurt himself badly by playing fast and loose with his DOS claims, which seem to have become a moving target for him (or his attorneys). Essentially, the Court's decision is that trial court findings on date of separation won't be overturned in the absence of a manifest abuse of discretion, and the hands of appellate courts are tied by what is known as the "substantial evidence rule," i.e., as J. Dondero states "even if we would have reached a different conclusion based upon the evidence at trial, we do not reweigh the evidence and will affirm the judgment as to the date of separation if it is supported by substantial evidence." What makes the decision interesting, however, is that J. Dondero reviews the reported DOS decisions in light of the facts presented in this case, and (sort of) rejects controversial law on the subject thus giving rise to an exception that will help some parties who can conform their experience to the facts of this case.

A quick review of the relevant legal principles:

• Per Family Code section 771 , earnings and accumulations (here, evidently W's earnings after H quit working for Clorox) acquired after the DOS are the separate property of the earning spouse.

• The legislature has not defined what constitutes the date of separation in section 771 or elsewhere, leaving this determination to the courts on the facts of each case.

• Long ago an appellate court determined that living separate and apart is a "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof." Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App. 138, 143 [trial court affirmed].

• This DOS definition was amplified in the case of In re the Marriage of Bagary (1977) 73 Cal.App.3d 444, 448 which described the question as "whether the parties' conduct evidences a complete and final break in the marital relationship." [Trial court reversed because no substantial evidence presented by husband rebutting presumption marriage still intact, even though he was having extra-marital relations]. This is a a good case to cite if the other spouse claims a date of separation based upon proof of other sexual relationships, where she/he is otherwise reaping the domestic rewards of marriage.

• Marriage of von der Nuell (1994) 23 Cal.App.4th 730 blended these two definitions, as follows: "[B]ecause rifts between spouses may be followed by long periods of reconciliation, and the intentions of the parties may change from one day to the next, we construe Bagary to hold legal separation requires not only a part of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship." [Trial court reversed where the record was "replete with evidence that during those four years while living apart, the parties continued to function as an economic unit and retained social, sexual and emotional bonds."

• Thus, the test arguably includes both subjective and objective components. In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. The objective component examines whether there is objection conduct evidencing and support that subjective intent. [Trial court reversed with instructions on remand that "the parties' physical separation is a threshold prerequisite to separation" and "that the parties' other conduct may be considered only to the extent that it is contemporaneous with the intent to separate."

Norviel has since been the principal (and for many highly controversial) decision relied upon by attorneys who are opposing separation dates where the parties continued to live under the same roof. Justice Dondero specifically distinguishes Norviel in order to reach his conclusion in Davis, based upon the "substantial evidence" rule. Frankly, we family law attorneys have been awaiting a decision like this for a long time - particularly in light of the financial circumstances of many of our clients who've been forced to endure and live together under for economic reasons during the Great Recession. The only problem here is that that reality seems missing from this decision (i.e., there is no evidence that the parties continued together for primarly financial reasons). However, as it turns out, there were a host of other facts that supplied the missing "under the same roof" DOS juice, including Wife's bold(?) assertion she had every right to continue to reside in their home. For that reason, however, the impact of this decision may be limited to its own peculiar facts, which involved a highly credible Wife.

There were additional facts that the trial court considered. Wife's trial evidence included the following:

• Wife testified that she believed the marriage was over in 2000 but that she kept up appearances for the sake of the children (failing to meet the objective component, although she never argued the DOS was in 2000).

• Wife testified that Husband physically assaulted her in October, 2005 and that that was the "last straw" (subjective). However, because her son had issues with the local school district she waited until June, 2006, to announce that the marriage was over (objective).

• She decided she would continue to contribute to household expenses, but at that time developed the spreadsheet itemizing their respective contributions - and to the children's expenses (subjective/objective). Any other money belonged to the party who earned it.

• After June 1, 2006, W took H off her credit card and ceased making payments on his (objective).

• W testified she continued to live in the home after June, 2006 because it was her home as much as it was his (applause, applause, applause!), but that she made an effort to keep their interactions to a minimum. The job she began in July, 2006, was in southern California and she would go there each week and stay at a hotel from 3 to 5 nights in a row (objective).

• In her mind, she and H were roommates when she was in NorCal, and she kept up appearances for the sake of the children (subjective). She had an important smoking gun email that pretty much said exactly that, dated from that period (objective).

• They had a prepaid trip to Hawaii in 2006, and shared a hotel room but not a bed. After that, she took the kids on her vacations without H, and H took them on his trips without W (objective). She never invited H on trips she took thereafter with the kids (objective). He invited her to accompany them on her trips, but she declined (objective).

• The parties drove separate cars on back-to-school nights (objective), unless the children begged her to ride with H (subjective).

• The parties continued to celebrate birthdays and special occasions by going together with the children (negative - objective).

• She finally moved out in February, 2011 after H had stopped contributed anything to household expenses because he had "no money."

My read: Wife here was one smart cookie, with darn smart lawyers, but she was telling the truth! We have to love truth, first and foremost!

This assumption was confirmed by Husband's weak counter-story:

• Nothing changed after June, 2006 - it was 'business as usual'.

• She did in fact announce that she wanted a divorce, but she'd threatened divorce before.

• He agreed to the ledger system because it was a way to get bills paid, although he "didn't like it".

• They always had a dysfunctional and abnormal marriage.

• Nothing changed until she moved out.

The outcome therefore, to me, is not surprising. The case distinguishes the facts that lead to the rulings in other reported cases on DOS, and if you have a separate date issue I urge you to read the full decision. The bottom line for Justice Dondero is this part of the ruling: "While the cases summarized above involved spouses who had already moved out of the family home while continuing to maintain ongoing financial and social relations, thereby evidencing a lack of true marital separation, we see no reason why the inverse rationale can not be applied to a spouse who continues to live in the family home but who, in every meaningful way, has abandoned the marital relationship. In this respect, we disagree with the bright line drawn by the majority in Noviel...."

I think this is a ground-breaking, and enlightened, case. It implicitly recognizes that spouses who are actually done with their marriages may have ongoing financial, property, and child related entanglements that encourage or force them to continue to interact with each other in a manner that looks, superficially, as though there has not been a final parting of the ways. That interaction has been presumed in the earlier reported separation cases as evidence establishing an emotional ambivalence, or to infer a desire to reconcile or actual reconciliation, or which could be interpreted by courts as contradicting their testimony that the marriage was forever broken. Hence, the length of marriage becomes extended, and then by operation of the law the community estate is treated as though it continues to gain an interest in assets acquired thereafter, or it incurs a liability for debts, and a longer marriage generally extends the right to receive alimony or spousal support. A trap for the unwary.

You can use Davis as authority for the proposition that ongoing financial or kid related interactions do not, of themselves, establish that the parties did not in fact separate. What is enlightened about it, besides recognizing that humans don't act in cookie-cutter ways, is that a spouse who behaves amicably or even responsibly towards the other after break up - possibly simply because they continue to care for or help them and don't desire to rip his or her throat out - should not be punished or taxed with additional family law obligations for behaving like decent human beings. Up to now, if your didn't act as though you hated your former partner and didn't cut them out of your life like a cancer and have almost zero interactions with them, you ran the risk that much greater financial consequences would flow your way. Unfortunately, many judges who are cynically used to seeing hateful behavior in their courtrooms may continue to be confused over what such kindness or respect might really mean. (I am not necessarily referring to the Davis spouses, but to some cases we have in our offices where separation date is an issue only because our clients were foolish enough (?) to continue to do "nice things" for the other).

Finally, ..., thank you Justice Dondero! Society and government may still one day evolve to a place where we encourage behaviors in the midst of divorce that are good, rather than penalizing people for them. As a matter of public policy, how do we want former intimate partners to treat each other in the land of relationship-end? This is especially poignant when we consider the negative consequences to children in reinforcing the notion among parents that they place themselves in fiscal's harm's way if they hang out too much with the other parent, especially in the high anxiety, emotion and confusion that surrounds the initial stages of divorce.

Philosophical digressions aside, folks, remember this - the California Supreme Court has not decided a DOS case, and this one may be viewed as being limited to its facts. It is a breath of fresh air, but it is not "game-over" in the DOS wars! The reversal score card in the lower appellate courts shows that trial courts will not be automatically affirmed.

Be safe out there and good luck Quentin, I hope this helps you a bit!

Thurman W. Arnold III, CFLS